Employer Roundtable provides information on updated Enforcement Guidance on use of records in hiring decisions

Scott Bowers, risk management and Equal Employment Opportunity Commission supervisor with the Colorado Department of Labor and Employment, talks about the updated Enforcement Guidance on employer use of arrest and conviction records in hiring, during an Employer Roundtable on Monday.
(Callie Jones/Journal-Advocate)

STERLING -- With 13 million people annually admitted and released from local jails, it's more than likely that businesses that are hiring will come across a job applicant with a criminal record.

In April, the U.S. Equal Employment Opportunity Commission (EEOC) voted to approve an updated Enforcement Guidance on employer use of arrest and conviction records in hiring decisions.

Scott Bowers, risk management and EEOC supervisor with the Colorado Department of Labor and Employment, was in Sterling on Monday for an Employer Roundtable, to talk about what the updated Enforcement Guidance means.

Approximately 16 people attended the event, held at Northeastern Junior Colleges.

Bowers started by giving an overview of some of the equal employment laws, including Titles VI and VII Civil Rights Acts of 1964, the Workforce Investment Act and the Colorado Anti-Discrimination Act. These laws prohibit discrimination based on race, creed, color, national origin, religion, sex, age, disability, political affiliation/belief or sexual orientation, including transgender status.

There is a myth that people with criminal records are automatically barred from employment. In the vast majority of cases, employers may not automatically bar everyone with an arrest or conviction record from employment because an automatic bar to hiring everyone with a criminal record is likely to limit the employment opportunities of applicants or workers because of their race or ethnicity.

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Bowers also talked about the Fair Credit Reporting Act.

There is a myth that an employer can get a copy of an applicant's criminal history from companies that do background checks without the applicant's permission. However, the FRCA requires an applicant's permission for an employer to ask a company for a report on criminal history.

Bowers said that the U.S. has the highest rate of incarceration of any country. According to a Training and Employment Guidance Letter from the U.S. Department of Labor, on any given day, about 2.3 million people are incarcerated. Each year 700,000 people are released from prison and almost 13 million are admitted to -- and released from -- local jails.

"So, you can see how with numbers like that, chances are pretty good that sooner or later you're going to come across a job applicant that has some kind of contact with the criminal justice system," he said.

The letter also states that an estimated one in three adults now have a criminal record, which often consists of an arrest that did not lead to conviction, a conviction for which the person was not sentenced to a term of incarceration or a conviction for a non-violent crime.

Bowers pointed out that criminal record, criminal history, ex-offender and clean criminal record are pretty vague terms and there can be different types of criminal records. For instance, one person may have felony on their record for armed robbery, while another has a minor larceny charge for overdue library books.

Currently workforce centers are required to screen job postings to see whether the employer has asked if the applicant has a criminal record. If the employer has, the center has to send a notice stating "if you post such an announcement it runs a risk of discriminating illegally against certain groups" and they can ask the employer to edit the post by removing that question.

Additionally, employers registering for the first time at work centers get a notice with current job announcements that categorically exclude applicants with arrest or conviction records.

The centers also have to send a notice to job seekers referred to a position that considers criminal history.

Bowers said that with the new guidance the EEOC is not creating a new "protected class."

"We just want you to do a little bit more analysis before you make a decision on somebody who has been arrested or has served time in a prison or has served time in jail," he said. "It doesn't say that an employer has to hire somebody from a particular background. It does not establish any kind of quota for hiring such folks."

"It's saying that you need to consider a couple of things before you make that decision."

Those things include relevance of the particular crime that the applicant allegedly committed compared to the job opening requirements.

"One of the obvious comparisons would be if somebody was convicted of a bank robbery, you wouldn't hire them for a position that handled cash," Bowers said.

Also, consider how much time has elapsed since the conviction or arrest. Bowers said there isn't a certain number of years that should have elapsed since the conviction before an employer can no longer consider it; it's up to the employer to decide.

Additionally, he talked about retaliation, which is a commonly used term but frequently misapplied.

Retaliation claims are the fastest growing EEOC category. In order to be considered a valid claim the first thing EEOC will look at is the timing of the protected activity versus the alleged employer action.

The alleged employer action is the retaliation. Meanwhile, protected activity would be filing a discrimination claim for being a witness in an investigation of a discrimination claim or providing information about an unlawful employment practice, for example.

The law says anybody can file a discrimination claim or be a witness in an investigation and they should have no adverse action taken against them.

Bowers also pointed out that a discrimination claim doesn't have to be true.

"Just because a claim isn't true doesn't mean they're not protected. The protected activity is the actual filing of the claim, not the truth of the filing."

If adverse action follows the protected activity closely in time, then it's going to garner the scrutiny of the EEOC.

"If you say for instance, 'well no, we did not fire them for filing that claim, we fired them because they had performance issues,' you just have to make sure that you have that documented and that it extends back into history a little bit," Bowers said.

RE-1 Valley School District has announced its policy for determining eligibility of children who may receive free and reduced price meals served under the National School Lunch and School Breakfast Program.
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